Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 1045 (GAU)

Suresh Phukan v. State of Assam

2014-12-08

C.R.SARMA, PRASANTA KUMAR SAIKIA

body2014
JUDGMENT C.R. Sarma, J. 1. By this appeal, the appellant, has challenged the impugned judgment and order, dated 05.10.2010, passed by the learned Addl. Sessions Judge, (FTC), Sivasagar in Sessions Case No. 9(S-S)/2010 (G.R. Case No. 1013/2009). By the impugned judgment and order, the learned Addl. Sessions Judge (FTC), convicted the appellant under Section 302 of the Indian Penal Code (for short IPC) and sentenced him to suffer imprisonment for life and pay fine of Rs. 2,000/- (Rupees two thousand), in default suffer R.I. for another period of 2 (two) months. It has also been ordered that the convicted person shall be entitled to set off, under Section 428 of the Code of Criminal Procedure (for short Cr. P.C). 2. We have heard Mr. I. Hussain, learned Amicus Curiae, appearing for the appellant and Ms. S. Jahan, learned Additional Public Prosecutor, Assam, appearing for the State respondent. 3. The prosecution case, which has given rise to this appeal, may, in brief, be stated as follows: "Sri Ganakanta Phukan (hereinafter called, 'the deceased') after death of his wife, was living with his sons, namely Sri Suresh Phukan (accused), Sri Bimal Phukan (PW 3) and daughter, Miss Himadri Phukan (PW 2). His eldest son Sri Tarun Ram Phukan (PW 1), used to live in his maternal uncle's house. Sri Bimal Phukan was a student, studying in a local school." On 31.08.2009, at about 3.00 p.m., Smti Himadri Phukan (PW 2) offered a cup of tea to her father i.e. the deceased, who was sitting on a bench in the burandah their house. The cup of tea was placed on the bench itself. In the meantime, Shri Bimal Phukan (PW 3), who had arrived from school, took seat on the same bench and the cup of tea meant for the deceased had fallen down. The deceased, being angry, due to fall of the tea, picked up a 'Naga Dao', which was lying on the bench and threw same at P.W. 3. Though PW 3 did not sustain any injury, his elder brother i.e. the appellant (Sri Suresh Phukan), who was nearby, charged his father asking him as to why he (father) had made attempt to assault Shri Bimal Phukan (PW 3) and, being aggrieved he dealt dao blows on the head and the right arm of the deceased, as a result of which the deceased slumped down and succumbed to the injuries. The appellant threw away the dao into the jungle and left the house. After committing the said crime, the appellant went to his maternal uncle's house, at Rupahipam and informed his elder brother Sri Tarun Ram Phukan (informant) that his father was cut by some person and that he would not survive. On being so informed, PW 1 rushed to their house. As the dead body was already taken to the police station, he found the same in the Police Station. He (PW 1) lodged an FIR (Ext. 1) with the police, which was registered as Demow PS. Case No. 116/2009, under Section 302 IPC. 4. During the course of investigation, the Investigating Officer (PW 9) forwarded the dead body for postmortem operation, arrested the accused (appellant), collected the inquest report, prepared by a Magistrate, seized the weapon of assault, prepared a sketch map of the place of occurrence, examined the witnesses and collected the postmortem report. 5. At the close of investigation, police submitted charge sheet, under Section 302 IPC, against the accused-appellant. The offence, being exclusively triable by the court of Sessions. The learned Chief Judicial Magistrate, Sivasagar committed the case to the court of Sessions. The learned Addl. Sessions Judge (FTC), Sivasagar framed charge under Section 302 IPC. The charge was read over and explained to the accused to which, he pleaded not guilty. 6. In order to prove its case, prosecution examined as many as 9 (nine) witnesses, including the investigating officer (PW 9) and the Medical Officer (PW-7), who performed the autopsy, in respect of the dead body of the deceased. 7. At the close of the examination of the prosecution witnesses, the learned Addl. Sessions Judge examined the accused person under Section 313 Cr. P.C. The accused denied the allegations, brought against him and declined to adduce defence evidence. He pleaded innocence. 8. Considering the evidence on record, the learned Addl, learned Sessions Judge convicted the accused under Section 302 IPC and sentenced him as indicated herein above. Hence, the convicted person, as appellant, has come up with this appeal. 9. Mr. I Hussain, learned Amicus Curiae, appearing for the appellant, taking us through the evidence, on record, has submitted that there is no substantive evidence to show that the appellant had caused the death of his father. Hence, the convicted person, as appellant, has come up with this appeal. 9. Mr. I Hussain, learned Amicus Curiae, appearing for the appellant, taking us through the evidence, on record, has submitted that there is no substantive evidence to show that the appellant had caused the death of his father. It is also submitted that though the police had seized a dao, the same was not sent to Forensic Science and laboratory (FSL) for examination and as such it cannot be held that the said dao was the weapon of assault 10. The leaned Amicus curiae has submitted that, even if it is held that the appellant had caused death of his father, then also, considering the facts and circumstances of this case, the conviction under Section 302 IPC is not maintainable in as much as no ingredients of murder has been established. It is submitted that there was no intention or premeditation, on the part of the appellant, to cause the death of his father and that everything had happened in a spur of moment out of the grave provocation. The accused appeared to have been provoked by the act of throwing the dao at the younger brother of the appellant with an attempt to cause hurt to the younger brother of the appellant, for no fault on his part. Therefore, it is submitted that the alleged offence, if it is held to be committed by the appellant will fell under Section 304 Part-II IPC. 11. Controverting the said arguments, advanced by the learned Amicus Curiae, appearing for the appellant, Ms. S. Jahan, learned Addl. Public Prosecutor, Assam, appearing for the State respondent, has submitted that the evidence, given by the eye witnesses i.e. P.W. 2 and PW 3, who are the sister and the brother respectively of the appellant, is sufficient to show that none other than the appellant had caused the death of the deceased. It is submitted that the prosecution has been able to prove the charges against the appellant, beyond all reasonable doubt. It is submitted the learned Additional Sessions Judge committed no error, requiring interference with the impugned judgment and conviction. 12. Having heard the learned counsel, appearing for both the parties, we have carefully perused the evidence, on record. 13. It is submitted that the prosecution has been able to prove the charges against the appellant, beyond all reasonable doubt. It is submitted the learned Additional Sessions Judge committed no error, requiring interference with the impugned judgment and conviction. 12. Having heard the learned counsel, appearing for both the parties, we have carefully perused the evidence, on record. 13. As reveal by the prosecution witnesses, there is no dispute that the deceased succumbed to the injuries sustained by him, on 31.08.2009 at about 3.00 p.m. in his house. 14. The medical Officer, who performed the autopsy of the dead body of the deceased, deposed as PW-7. He found the following injuries:- "(1) Cut injury of about 4"x3" on the left from tal bone underlying bone and soft tissues exposed. (2) A cut injury about 3" X 2 1/2" on the left shoulder joint. (2) A cut injury of 1 1/2" X 1 1/2" on the left index finger." He exhibited the postmortem report, as Ext. No. 6 and opined that the cause of death of the deceased was shock and hemorrhage, due to injuries sustained by him. He also opined that the injuries, found on the dead body of the deceased, could be caused by a dao like material Ext. No. 1. He further stated that the injury No. 1 was sufficient to cause the death of a person, in an ordinary course. From the said evidence, given by the Medical Officer (PW 7), it stood established that the deceased sustained the cut injuries inflicted by means of a weapon like material Ext. No. 1. 15. The Investigating Officer (PW 9) stated that the appellant was apprehended by him, on 01.09.2009 and on being asked, the appellant stated that he had thrown the dao i.e. the weapon of assault to the jungle. The I.O. has recorded the said statement and he exhibited the same as Ext. No. 8. He further stated that the accused had led him to the recovery of the said dao. According to the I.O. the dao was seized vide Ext. No. 5 in presence of the witnesses. He exhibited the dao as material Ext. No. 1. This material Ext. No. 1 was shown to the Medical Officer (PW 7) at the time of his examination and he (PW 7) opined that the said injuries might have been caused by the said dao. 16. No. 5 in presence of the witnesses. He exhibited the dao as material Ext. No. 1. This material Ext. No. 1 was shown to the Medical Officer (PW 7) at the time of his examination and he (PW 7) opined that the said injuries might have been caused by the said dao. 16. In view of the above, we find sufficient material to believe that the material Ext. No. 1 was used as the weapon of assault. Both PW 2 and PW 3, who are the sister and the brother respectively of the appellant, were present in their house at the relevant time. P.W. 2 stated that, she, offering a cup of tea to her father, placed on the bench and the bench, being dashed by Sri Bimal Phukan (PW 3), who returned from the school, caused the cup of tea to fell down to which the deceased had thrown a "Naga Dao' at PW 3 and then the appellant, picking up the said dao, asked his father as to why he (deceased) was assaulting Sri Bimal Phukan. According to this witness (PW 3), the appellant had inflicted two dao blows i.e. on the left arm and on the head of their father, as a result of which he (deceased) had fallen down and lost his consciousness. In her cross-examination, this witness (PW 2) stated that as Sri Bimal Phukan (PW3) had caused the falling of the cup of tea, the deceased made attempt to cut him. Though this witness was duly cross-examined on behalf of the defence, her said evidence remained undemolished. 17. From the evidence of the said witness (PW 2), it is clearly found that the deceased made attempt to cut Shri Bimal Phukan (PW 3), who was the younger brother of the appellant and the appellant had picked up the dao, and inflicted blows on the deceased. 18. A close reading of her evidence, on record, it reveals that the appellant had no quarrel with his father and he took offence of the act committed by the deceased. The other eye-witnesses, Shri Bimal Phukan (PW-3), supporting the evidence of PW 2 stated that due to fall of the cup of tea, his father, being angry, had picked up the Naga Dao, which was lying on the bench and threw the same on him (PW 3), as a result of which the same had hit his calf. The other eye-witnesses, Shri Bimal Phukan (PW-3), supporting the evidence of PW 2 stated that due to fall of the cup of tea, his father, being angry, had picked up the Naga Dao, which was lying on the bench and threw the same on him (PW 3), as a result of which the same had hit his calf. He further stated that his brother i.e. the appellant had picked up the said dao, and asked his father as to why he was going to assault Shri Bimal i.e. PW 3 and inflicted one blow on the head and another blow on the right arm of their father. 19. In his cross-examination, he (PW 3) further stated that their father was a man of angry nature and, that he used to chide them (i.e. his sons and daughter) quite often, that too without any apparent reason. He also stated that the anger was the only cause of the incident. He further stated that due to the angry nature of their father they (i.e. PW 3 and his brother) also developed hostile attitude. From the above evidence given by PW-3, it appears that the temperament of the deceased who lost his wife, earlier, and the temperament of the appellant, who lost his mother was not normal and they became angry type of persons by disposition. 20. P.W. 1 (Sri Tarun Ram Phukan), who is one of the sons of the deceased, exhibited the same as Ext. 1 lodged the FIR. He did not see the incident. He found the dead body of his father in the police Station. 21. Sri Uma Kanta Phukan (PW 4) coming to know about the incident, visited the place of occurrence i.e. the house of the deceased. He stated that he heard that the appellant had cut his father i.e. the deceased. 22. According to this witness, he informed the police over telephone and the police visited the place of occurrence, on the next day. Exhibiting the seizure list as Ext. 9, he stated that the weapon of assault was seized by the police vide material Ext. No. 1. 23. PW 5 (Sri Prahlad Baruah) was a technician of the ambulance. He stated that the deceased was taken to the hospital in his ambulance. 24. Sri Siva Phukan (PW 6), who is the uncle of the appellant stated that the deceased was his elder brother. No. 1. 23. PW 5 (Sri Prahlad Baruah) was a technician of the ambulance. He stated that the deceased was taken to the hospital in his ambulance. 24. Sri Siva Phukan (PW 6), who is the uncle of the appellant stated that the deceased was his elder brother. According to this witness, on being informed about the incident, he visited the house of his brother and found his brother in injured condition. According to this witness, the deceased was not in a position to speak and PW 2 had informed him that the appellant had caused the injuries. He has also exhibited the seizure list as Ext. No. 5 by which the dao was seized and his signature as Ext. No. 5(1). He exhibited the dao as Material Ext. No. 1. He (PW 6) further stated that the deceased died on his way to the Hospital. 25. Sri Bhogeswar Phukan (PW 8) stated that he came to know about the incident from PW 6. He was not present at the time of incident. He was a witness to the seizure of the dao. He exhibited the seizure list as Ext. 5 and his signature as Ext. 5(3). He had exhibited the dao as Material Ext. No. 1. 26. From the above discussed evidence, it is found that PW 2 and PW 3 were the eye witnesses to the occurrence. They, in clear terms, stated that the appellant had inflicted dao blows, resulting death of their father. The defence could not demolish their evidence. 27. Admittedly they (PW 2 and PW 3) were the sister and the brother, respectively, of the appellant. There is nothing on record to find that they had any reason or grudge to falsely implicate the appellant, leaving the actual culprit. The sequence of events, narrated by the said two witnesses, inspires confidence to believe their evidence, as narrated above. 28. The circumstantial evidence surfacing from the evidence of the said two witnesses the facts that, on the fateful day at the relevant time, PW 2, PW 3, the appellant and the deceased were in their house. P.W. 2 had offered a cup of tea to her father, i.e. the deceased and the same was placed on the bench, in the verandah of the house. P.W. 3, who returned from the school sat on the bench, and the cup of tea had fallen down. P.W. 2 had offered a cup of tea to her father, i.e. the deceased and the same was placed on the bench, in the verandah of the house. P.W. 3, who returned from the school sat on the bench, and the cup of tea had fallen down. Being angry, the deceased, who was an angry type of person, had thrown a 'naga dao' at the PW 3. The appellant, being the elder brother of PW 3, picked up the said dao and charged his father as to why he (deceased) had attempted to attack PW 3 (Sri Bimal Phukan) and inflicted the blows. He left the house after throwing the dao. The dao was, subsequently, recovered by police and seized vide Ext. No. 5. The same was exhibited as Material Ext. No. 1. The Medical Officer opined that the injury, sustained by the deceased, could have been caused by a weapon, like Material Ext. No. 1. 29. P.W. 1, the elder brother of the appellant stated that at about 4.00 p.m. i.e. after about 1 (one) hour of the incident, the appellant visited him in their maternal uncle's house and informed that someone had cut their father. The deceased succumbed to the injuries sustained by him, in the said incident. 30. The above circumstantial evidence coupled with the oral evidence given by P.W. 2 and PW 3 clearly establish that the appellant had inflicted the dao blows, resulting death of their father. 31. In view of the above, we have no hesitation in holding that the prosecution could establish beyond all reasonable doubt that the appellant caused the death of his father by inflicting dao blows on the fateful day. 32. Now the question is whether the appellant was guilty of the offence under Section 302 IPC or not. 33. From the evidence on record, more particularly the evidence of PW 2 and PW 3, it appears that the appellant had no pre-meditation to assault his father. He took up the dao when the same was thrown by the deceased at his younger brother i.e. P.W. 3. The appellant and the deceased were angry type of person and the deceased used to chide his sons. The fact remains that the appellant, PW 1, PW 2 and PW 3 had lost their mother early and they grew up in the company of their angry father. The appellant and the deceased were angry type of person and the deceased used to chide his sons. The fact remains that the appellant, PW 1, PW 2 and PW 3 had lost their mother early and they grew up in the company of their angry father. Hence, they were deprived from the love and affection of their mother. They were not properly maintained and groomed by their father, who was a person of angry nature. Therefore, naturally, the appellant being the elder brother of PW 3 (a student), had much love and affection towards him (PW 3). The said nature and temperament of the deceased is revealed by the act of throwing a naga dao at his school going youngest son, only on the ground that he had missed a cup of tea, due to fault on the part of his said son. Fortunately, the said dao, though hit the calf of PW 3, did not cause any severe injury. 34. In our considered opinion, this act, on the part of the deceased who used to chide his sons, was sufficient to provoke the appellant to react by charging the deceased as to why he had made attempt to assault PW 3, by throwing a dao in the said manner. 35. In view of the attending facts and circumstance, in our considered opinion, the appellant was, probably, provoked by the said act of their father and the appellant also due to anger, in a spar of moment, lost his temper and control over mind, as a result of which he inflicted the said blows. 36. A person, on being provoked, if loses his temperament and cool, cannot be expected to an act like a prudent person. The anger that controls the mind may lead him to inflict many blows till the person regains his senses i.e. normal state of mind of a prudent person. Therefore, in the present case, the appellant's act of inflicting more than one blows, we lead to hold that it was not an act committed with intention to cause death of the deceased. 37. In the case of Hemraj v. The State (Delhi Administration), 1990 SCC 291 , the appellant, Hemraj and Madan Lal were brothers. Similarly, Naresh and Daulat Ram were brothers. 37. In the case of Hemraj v. The State (Delhi Administration), 1990 SCC 291 , the appellant, Hemraj and Madan Lal were brothers. Similarly, Naresh and Daulat Ram were brothers. The deceased Ravinder Kumar was the son of PW 16, and he was residing with his family near Arya Samaj Mandir, Arya Nagar, Delhi. Naresh and Daulat Ram resided in a house opposite to the house of PW 16. The appellant and his brother Madal Lal lived in nearby street. Onwards October, 1972, Daulat Ram had gone to the house of PW 16 and complained to PW 20, the wife of PW 16 that she was not permitting the wife of the appellant to come and live with her husband and abused her in filthy language. In the evening, PW 20 complained to her husband of what had happened. PW 16 tried to contract Daulat Ram, but could not meet him. So, PW16 complained to his neighbours about the incident. On 5th October, 1972 at about 7.30 a.m. while PW 16 was standing in the verandah of his house, the appellant, alongwith the acquitted accused persons, came there and shouted. On hearing the hue and cry, Ravinder Kumar came outside. Accused Madan and Naresh (since acquitted) caught hold of Ravinder and Daulat (since acquitted) and instigated the appellant to kill Ravinder. The appellant took out a knife from his pyjama and inflicted a stab on the chest of Ravinder. When PW 16 tried to intervene, he was hit with a stone on his nose, by Daulat Ram. After causing injuries to Ravinder and PW16, all the accused took to their heels by the side of Desh Bandu Gupta Road. Ravinder ran after the accused for a short distance and fell down. PW 19, the neighbour of PW 16 with the help of another person removed the injured Ravinder to Irwin Hospital where the Medical Officer, on examination pronounced, Ravinder dead. In the postmortem examination, one incised punctured injury, on the left side from the chest, was found. As per post mortem examination, three injuries were found and the injury No. 3 was incised puncture Would measuring 2 x 1 cm. oblique 5 cm away from mid line and 8 cm below left nipple just inside and mid-clavicular line on the left side from the chest. As per post mortem examination, three injuries were found and the injury No. 3 was incised puncture Would measuring 2 x 1 cm. oblique 5 cm away from mid line and 8 cm below left nipple just inside and mid-clavicular line on the left side from the chest. The upper outer end of the injury was rounded while the lower inner end was with clean cut. Blood was coming out of it and it was chest cavity deep. The learned Sessions Judge convicted the appellant under Section 302 IPC and sentenced him to suffer imprisonment for life. On appeal, the High Court dismissed the same and upheld the impugned judgment and order of the trial court. The appellant approached the Supreme Court and the Hon'ble Supreme Court found that both the appellant and the deceased suddenly grappled with each other and the entire occurrence took place within a minute. It has also been found that, during the course of sudden quarrel, the appellant gave a single stab, on the chest of the deceased, causing an injury, which in the opinion of the Medical Officer was sufficient, in the ordinary course of the nature, to cause death. The Supreme Court, allowing the said appeal, observed that, considering the totality of the entire facts and circumstances, the occurrence had taken place most unexpectedly, in a sudden quarrel and without premeditation during the course of which the appellant caused a solitary injury and that he could not be imputed with the intention to cause death of the deceased or with the intention to cause that particular fatal injury, but he could be imputed with the knowledge that he was likely to cause an injury which was likely to cause death. Accordingly, the Supreme Court modified the conviction under Section 304 Part-II and sentenced the appellant to suffer rigorous imprisonment for (seven) years. 38. In the above referred case, the appellant had inflicted the stab injury on the mid of the chest, which was a vital part of the body. In the case, at hand, also, the appellant had inflicted first blow on the head. In the present case, there is nothing, on record, to show that the appellant had intention or premeditation to cause death of the deceased. He had inflicted dao blow on the head, after picking up the same. He did not carry the said dao. In the case, at hand, also, the appellant had inflicted first blow on the head. In the present case, there is nothing, on record, to show that the appellant had intention or premeditation to cause death of the deceased. He had inflicted dao blow on the head, after picking up the same. He did not carry the said dao. In fact he accidently picked up the same, on being thrown by deceased at his youngest son, who was the brother of the deceased. However, it could be understood that he had the knowledge that the injury caused by him was likely to cause a death. Therefore, the principle adopted in the case of Hemraj (supra) is applicable to the case at hand also. 39. In the case of Hori Ram v. State of Haryana, (1983) 1 SCC 193 , the deceased Ran Singh was pushing his cart through the chowk in village Mundakhera, it stuck against the platform belonging to a resident namely Hukam Chand. Hukam Chand, the appellant Hari Ram and some others were sitting at some distance from the platform and an altercation ensued between them and Ram Singh. The appellant Hari Ram shouted that Ram Singh would not behave unless he was beaten and he ran inside the house and bought out a jeli. Hukum Chand held the arms of Ram Singh and Hari Ram trusted the prongs of the jeli into Ran Singh's chest and when the jeli was withdrawn, Ram Singh had fallen down and died. The learned Sessions Judge convicted the said accused under Section 302 IPC and sentenced him to suffer imprisonment for life. High Court dismissed the appeal, preferred by the appellant and affirmed the conviction and sentence. The matter was taken to the Supreme Court. The Hon'ble Supreme Court observed that in a hit of the altercation, between Ran Singh on the one hand and the appellant and his comrades on the other, the appellant seized a jeli and thrusted it into the chest of Ram Singh. The Supreme Court observed that it did not appear that there was any intention to kill Ram Singh. With the above observation, the Supreme Court modified the conviction under Section 302 IPC to one under Section 304 Part-II IPC and sentenced the appellant to suffer rigorous imprisonment for five years. 40. The Supreme Court observed that it did not appear that there was any intention to kill Ram Singh. With the above observation, the Supreme Court modified the conviction under Section 302 IPC to one under Section 304 Part-II IPC and sentenced the appellant to suffer rigorous imprisonment for five years. 40. In the above cited decisions, the Supreme Court, while modifying the conviction under Section 302 IPC to one Section 304 Part-II IPC observed that the incidents took place due to sudden quarrel and that the blows were not inflicted with an intention or premeditation to cause death of the deceased(s). In the case of Hemraj (Supra), the Supreme Court observed that there was no premeditation, on the part of the appellant and he could be imputed with the knowledge that he was likely to cause an injury which was likely to cause death. 41. In the case at hand also there was nothing on record to show that the appellant had any pre-mediation or intention to cause the death of his father. Everything happened suddenly in a moment due to the attempt made by the deceased to cause injury to the younger brother of the appellant by throwing a dao. Had the dao not been thrown at the brother of the appellant, he would not have inflicted the injuries in the said manner. Therefore, there are sufficient materials to show that the appellant had picked up the dao due to sudden provocation and in a spur of moment and in the hit of passion, had inflicted blows on his father. As the first blow was inflicted on the head he could be imputed with the knowledge that he was likely to cause an injury which was likely to cause death of the injured person. 42. In our considered opinion the principle adopted in the above cited cases is applicable to the facts and circumstances of the present case. Therefore, we have no hesitation in holding that the appellant had no pre meditation or intention to cause death of his father and as such the conviction under Section 302 IPC cannot be maintained. In our considered opinion, the appellant the offence under Section 304 Part-II, IPC. 43. In the result, we set aside the conviction under Section 302 IPC and the sentence of imprisonment for life imposed on the appellant. We convict him under Section 304 Part-II IPC. In our considered opinion, the appellant the offence under Section 304 Part-II, IPC. 43. In the result, we set aside the conviction under Section 302 IPC and the sentence of imprisonment for life imposed on the appellant. We convict him under Section 304 Part-II IPC. In view of the modified conviction, we sentence him to suffer rigorous imprisonment for 7 (seven) years. No interference is made in respect of the sentence of fine. 44. The appellant shall be entitled to the benefit of set off under Section 428 Cr. P.C. in respect of the period of imprisonment already undergone by the appellant. 45. In the result, the appeal is partly allowed, subject to modification, as indicated above. 46. We record with appreciation the service rendered by Mr. I. Hussain, as the Amicus Curiae, we direct that an amount of Rs. 7,000/- (Rupees seven thousand) be paid to the learned Amicus Curiae, by the State as his remuneration. Send back the LCR.